Child and Adolescent
Forensic Psychiatry
Washington, DC London, England
Child and Adolescent Forensic Psychiatry
Edited by
Diane H. Schetky, M.D.
Elissa P. Benedek, M.D.
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Library of Congress Cataloging-in-Publication Data
Principles and practice of child and adolescent forensic psychiatry / edited by Diane H. Schetky, Elissa P. Benedek. – 1st. ed.
p. ; cm.
Includes bibliographical references and index.
ISBN 0-88048-956-1 (alk. paper)
1. Forensic psychiatry. 2. Child psychiatry. 3. Adolescent psychiatry. I. Schetky, Diane H., 1940– II. Benedek, Elissa P.
[DNLM: 1. Forensic Psychiatry. 2. Child Abuse. 3. Child Custody. 4. Child Welfare. 5.
Commitment of Mentally Ill. 6. Juvenile Delinquency. 7. Violence. W 740 P9575 2002]
RA1151.P6736 2002 614´.1–dc21
2001041367 British Library Cataloguing in Publication Data
A CIP record is available from the British Library.
Contributors . . . ix Foreword: A Voyage of Discovery . . . xi Thomas G. Gutheil, M.D.
Preface. . . .xiii Diane H. Schetky, M.D.
Elissa P. Benedek, M.D.
PART I Basics . . . 1 1 History of Child and Adolescent Forensic Psychiatry . . . 3
Diane H. Schetky, M.D.
2 Introduction to the Legal System. . . 7 Melvin J. Guyer, J.D., Ph.D.
Robert J. Levy, J.D.
3 Forensic Ethics. . . 15 Diane H. Schetky, M.D.
4 Introduction to Forensic Evaluations . . . 21 Diane H. Schetky, M.D.
5 Testifying: The Expert Witness in Court . . . 33 Elissa P. Benedek, M.D.
6 Psychological Testing in Child and Adolescent Forensic Evaluations. . . . 45 Beth K. Clark, Ph.D., A.B.P.P.
Charles R. Clark, Ph.D., A.B.P.P.
7 Vicarious Traumatization. . . 59 Angela M. Hegarty, M.B., B.Ch., B.A.O.
PART II Child Custody . . . 67 8 Child Custody Evaluations . . . 69
Stephen P. Herman, M.D.
9 Parenting Assessment in Cases of Neglect and Abuse . . . 81 Richard Barnum, M.D.
Alvin Rosenfeld, M.D.
Steven Nickman, M.D.
11 Termination of Parental Rights. . . .109 Diane H. Schetky, M.D.
12 Transracial and Transcultural Adoption in the United States. . . .117 Donna M. Norris, M.D.
Yvonne B. Ferguson, M.D., M.P.H.
PART III Child Abuse. . . 127 13 Developmental Aspects of Memory in Children . . . .129
Beth K. Clark, Ph.D., A.B.P.P.
14 Reliability and Suggestibility of Children’s Statements: From Science to Practice . . . .137 Maggie Bruck, Ph.D.
Stephen J. Ceci, Ph.D.
15 Interviewing Children for Suspected Sexual Abuse . . . .149 Kathleen M. Quinn, M.D.
16 Forensic Issues in Munchausen by Proxy . . . .161 Herbert A. Schreier, M.D.
17 Clinical and Forensic Aspects of Sexual Harassment in School-Age Children . . . .171 Elissa P. Benedek, M.D.
Beth K. Clark, Ph.D., A.B.P.P.
18 Children and Pornography: Old Problems, New Technology. . . .179 Elissa P. Benedek, M.D.
Catherine F. Brown, Ed.M.
PART IV Youth Violence . . . 189 19 Neurodevelopmental Impact of Violence in Childhood. . . .191
Bruce D. Perry, M.D., Ph.D.
20 Domestic Abuse as a Risk Factor for Children and Youth . . . .205 Leah J. Dickstein, M.D.
21 Effects of Witnessing Violence on Children and Adolescents . . . .213 Cheryl S. Al-Mateen, M.D.
22 Children’s Access to Weapons. . . .225 Peter Ash, M.D.
23 Risk Assessment of Violence in Youths . . . .231 Diane H. Schetky, M.D.
24 Prevention of Youth Violence . . . .247 Dewey G. Cornell, Ph.D.
25 Overview of Juvenile Law . . . 259 Carl P. Malmquist, M.D., M.S.
26 Assessment and Treatment of Juvenile Offenders. . . 267 Debra K. DePrato, M.D.
Jill Hayes Hammer, Ph.D.
27 Sexually Aggressive Youth . . . 279 Jon A. Shaw, M.D.
28 Juvenile Waivers to Adult Court . . . 289 Charles L. Scott, M.D.
29 State-of-Mind Assessments: Competency and Criminal Responsibility. . . 297 C. J. Voigt, M.D.
Diane E. Heisel, M.D.
Elissa P. Benedek, M.D.
PART VI Legal Issues . . . 307 30 Legal Issues in the Treatment of Minors . . . 309
JoAnn Macbeth, J.D.
31 Psychiatric Commitment of Children and Adolescents. . . 325 Paul M. Brinich, Ph.D.
Marc Amaya, M.D.
W. V. Burlingame, Ph.D.
32 Legal Aspects of Mental Retardation . . . 339 James C. Harris, M.D.
33 Psychic Trauma and Civil Litigation . . . 355 Diane H. Schetky, M.D.
Melvin J. Guyer, J.D., Ph.D.
34 Forensic Telepsychiatry. . . 365 Philip Merideth, M.D., J.D.
Index . . . 371
ix Cheryl S. Al-Mateen, M.D.
Associate Professor, Departments of Psychiatry and Pe- diatrics, Medical College of Virginia, Virginia Common- wealth University, Richmond, Virginia
Marc Amaya, M.D.
Assistant Professor Emeritus, Department of Psychiatry and Behavioral Sciences, Duke University, Durham, North Carolina; Clinical Associate Professor, Depart- ment of Psychiatry, University of North Carolina at Chapel Hill
Peter Ash, M.D.
Associate Professor, Department of Psychiatry and Be- havioral Sciences, Emory University, Atlanta, Georgia Richard Barnum, M.D.
Director, Boston Juvenile Court Clinic; Assistant Clinical Professor of Psychiatry, Harvard Medical School, Boston, Massachusetts
Elissa P. Benedek, M.D.
Clinical Professor of Psychiatry, University of Michigan Medical Center, Ann Arbor, Michigan
Paul M. Brinich, Ph.D.
Clinical Professor, Departments of Psychology and Psy- chiatry, University of North Carolina at Chapel Hill; As- sociate Consulting Professor of Medical Psychology, Department of Psychology and Behavioral Sciences, Duke University, Durham, North Carolina
Catherine F. Brown, Ed.M.
Executive Editor, Psychiatric News (Newspaper of the American Psychiatric Association), Washington, D.C.
Maggie Bruck, Ph.D.
Associate Professor, Division of Child and Adolescent Psychiatry, Department of Psychiatry and Behavioral Sciences, Johns Hopkins School of Medicine, Baltimore, Maryland
W. V. Burlingame, Ph.D.
Clinical Professor, Department of Psychology, Universi- ty of North Carolina at Chapel Hill; Assistant Consulting Professor of Medical Psychology, Department of Psychi- atry and Behavioral Sciences, Duke University, Durham, North Carolina
Stephen J. Ceci, Ph.D.
Helen L. Carr Professor of Developmental Psychology, Department of Human Development and Family Stud- ies, Cornell University, Ithaca, New York
Beth K. Clark, Ph.D., A.B.P.P.
Private Practice, Forensic Psychology, Ann Arbor, Mich- igan
Charles R. Clark, Ph.D., A.B.P.P.
Private Practice, Forensic Psychology, Ann Arbor, Mich- igan
Dewey G. Cornell, Ph.D.
Clinical Psychologist and Professor of Education, Curry School of Education, University of Virginia, Charlottes- ville, Virginia; Director, Virginia Youth Violence Project, Charlottesville, Virginia
Debra K. DePrato, M.D.
Associate Professor of Clinical Public Health and Preven- tive Medicine; Chief, Section of Forensic Medicine; Pro- gram Director, Louisiana State University Health Sciences Center Juvenile Corrections Program, Louisiana State University Health Sciences Center, School of Medicine, New Orleans, Louisiana
Leah J. Dickstein, M.D.
Professor and Associate Chair for Academic Affairs; Di- rector, Division of Attitudinal and Behavioral Medicine, Department of Psychiatry and Behavioral Sciences; Asso- ciate Dean for Faculty and Student Advocacy, University of Louisville, Louisville, Kentucky
Yvonne B. Ferguson, M.D., M.P.H.
Private Practice, Child Psychiatry, Santa Barbara, Cali- fornia
Thomas G. Gutheil, M.D.
Professor of Psychiatry, Harvard Medical School, Boston, Massachusetts
Melvin J. Guyer, J.D., Ph.D.
Professor of Psychology, Department of Psychiatry, Uni- versity of Michigan, Ann Arbor, Michigan
Jill Hayes Hammer, Ph.D.
Assistant Professor of Clinical Psychiatry, Department of Psychiatry, Louisiana State University Health Sciences Center, School of Medicine, New Orleans, Louisiana James C. Harris, M.D.
Director, Developmental Neuropsychiatry, and Profes- sor of Psychiatry and Behavioral Sciences, Pediatrics and Mental Hygiene, Johns Hopkins University School of Medicine, Baltimore, Maryland
Angela M. Hegarty, M.B., B.Ch., B.A.O. (NUI)
Clinical Assistant Professor, Department of Psychiatry, New York University School of Medicine, New York, New York
Diane E. Heisel, M.D.
Treatment Services Director, Center for Forensic Psy- chiatry, Ann Arbor, Michigan
Stephen P. Herman, M.D.
Associate Clinical Professor of Psychiatry, Mount Sinai Medical Center, New York, New York
Robert J. Levy, J.D.
William L. Prosser Professor of Law, University of Min- nesota, Minneapolis, Minnesota
JoAnn Macbeth, J.D.
Partner, Crowell and Moring, Washington, D.C.
Carl P. Malmquist, M.D., M.S.
Professor of Social Psychiatry, University of Minnesota, Minneapolis, Minnesota
Philip Merideth, M.D., J.D.
Forensic Psychiatrist, Mississippi State Hospital and Uni- versity of Mississippi Medical Center, Jackson, Mississippi Steven Nickman, M.D.
Clinical Associate Professor of Psychiatry, Harvard Med- ical School, Boston, Massachusetts
Donna M. Norris, M.D.
Private Practice, Child Psychiatry, Boston and Wellesley, Massachusetts; Senior Associate in Psychiatry, Chil- dren’s Hospital Medical Center; Assistant Clinical Pro- fessor, Harvard Medical School, Boston, Massachusetts Kathleen M. Quinn, M.D.
Director of Training in Child and Adolescent Psychiatry, Cleveland Clinic, Cleveland, Ohio
Bruce D. Perry, M.D., Ph.D.
Director, Child Trauma Academy, Houston, Texas;
Medical Director, Provincial Programs in Children’s Mental Health, Alberta Mental Health Board, Calgary, Alberta, Canada
Alvin Rosenfeld, M.D.
Private and Consulting Practice, New York, New York, and Greenwich, Connecticut
Diane H. Schetky, M.D.
Private Practice, Forensic Psychiatry, Rockport, Maine;
Clinical Professor of Psychiatry, University of Vermont College of Medicine at Maine Medical Center, Portland, Maine
Herbert A. Schreier, M.D.
Chief of Psychiatry, Children’s Hospital Oakland, Oak- land, California
Charles L. Scott, M.D.
Assistant Clinical Professor of Psychiatry and Director of Forensic Psychiatry Training, Department of Psychiatry, University of California at Davis, Sacramento, California Jon A. Shaw, M.D.
Professor of Psychiatry and Pediatrics and Director, Di- vision of Child and Adolescent Psychiatry, Department of Psychiatry and Behavioral Sciences, University of Mi- ami School of Medicine, Jackson Memorial Medical Cen- ter, Miami, Florida
C. J. Voight, M.D.
Unit Director, Center for Forensic Psychiatry, Ann Ar- bor, Michigan
Saul Wasserman, M.D.
Clinical Associate Professor of Child Psychiatry, Stan- ford University Medical School, Stanford, California;
Private and Consulting Practice, San Jose, California
xi
A Voyage of Discovery
Thomas G. Gutheil, M.D.
I
n the late nineteenth century into the early part of the twentieth, a popular amusement involved looking at drawings to discover the outlines of hidden pictures of children concealed among leaves, plants, and other pasto- ral details. This image well captures the notion that child- hood itself could be seen as hidden for some time in the shadows of ignorance and inattention. Early artists failed even to see the differing proportions of children and sketched them as though they were diminutive adults.Sociologists have noted that childhood as a phenom- enon and a developmental stage was also discovered rel- atively recently: children were not merely small adults nor parental property, but evolving organisms with unique cognitive, moral, and social development as well as vulnerabilities. Awareness of these truths led to inter- est in the ways children develop and the ways in which they needed legal protections, such as child labor laws.
But here, too, attention and understanding came rel- atively late to the game. The case of In re Gault, for example, which was among the earliest cases to establish a number of legal protections for children, appeared only a handful of decades ago. We might thus conclude that we are still relatively early in the discovery of the legal and forensic contexts in which children appear.
Fortunately for the success of this ongoing voyage of discovery, the present work is edited by two recognized giants in the specialized field of child forensic psychiatry.
Drs. Schetky and Benedek have achieved a quantum leap in a subject that has been largely preoccupied with con- cerns regarding adult issues. From the more shallow pool
of child forensic specialists, the editors have drawn the very best as authors, to present a text that is not only comprehensive but rich in both historical detail and prac- tical guidance for the clinician. Laudably, the thrust of this text always favors evidence-based research rather than political correctness.
Discoveries in child forensic psychiatry are compli- cated by the same pendulum swings of fashion that bedevil other fields of knowledge. Consider sexual abuse of children. First it was unrecognized; then it was over- diagnosed by any amateur with an “anatomically incor- rect” doll; finally, rational approaches to uncontaminated assessment began to be identified and employed. The subject is illuminatingly explored in this text.
Child violence is another emerging area of concern.
Children at increasingly younger ages seem to be seizing all-too-available guns and shooting their teachers, class- mates, and random passersby. These vital matters are also explored herein.
The editors employ the highly successful format of previous clinical handbooks, a format which melds the clinical and legal issues into an easily followed sequence;
case examples are actively employed, pitfalls are identi- fied, including those of countertransference, and a prac- tical action guideline helps the clinician find out rapidly just what to do. In the book as a whole, after a review of the history of the child forensic field and some basic instruction on interacting with the legal system, the edi- tors explore child custody, child abuse, youth violence, juvenile offenders, and legal issues such as commitment
of children and treatment of minors. Beyond these fundamental issues, the parts contain some chapters addressing vital current matters never or rarely addressed before, such as vicarious traumatization in clinicians working with children; Munchausen syndrome by proxy;
children’s access to weapons; and aspects of sexual harassment in school-age children.
You hold in your hands a classic in the making. This textbook represents the high-water mark of the subject for this millennium. Every clinician who works with chil-
dren and adolescents should read this through and then keep it on a handy shelf for repeated ready reference;
child forensic psychiatrists should memorize it. The sub- ject will also be of great interest and utility to psycholo- gists and attorneys working in this field. And it is no pre- diction at all—it is a certainty—that this will become the definitive work for training programs everywhere. The editors are to be congratulated for bringing light to a shadowed and undiscovered country; their fortunate readers may now share the voyage of discovery.
xiii
Diane H. Schetky, M.D.
Elissa P. Benedek, M.D.
T
his volume replaces our previous book, Clinical Handbook of Child Psychiatry and the Law, which is now out of print and outdated. In the 10 years that have elapsed since its publication, we have seen a dramatic expansion in the field of child and adolescent forensic psychiatry and heightened interest in training in this area.This volume covers the same basic issues addressed in our previous book, with expanded and updated material and increased emphasis on issues related to adoption, youth violence, and juvenile offenders. We introduce new top- ics, including vicarious traumatization of the clinician, parenting assessments, transracial and transcultural adop- tions, sexual harassment, child pornography, sexually aggressive youth, the neurodevelopmental impact of vio- lence in childhood, and telepsychiatry. In addition to clin- ical chapters, we have included more background mate- rial on law and more research in important areas such as the suggestibility of child witnesses and the effect of vio- lence on children. Extensive references are provided that reflect current developments in the area of child and ado- lescent forensic psychiatry.
We have followed a similar format to that used in our previous book. Each chapter follows the same basic out- line to provide easy access to the material. Case examples take the reader into the real world of child and adoles- cent forensic psychiatry. The examples are designed to get the reader to think about the issues and link the mate- rial in the chapter to actual clinical situations. Some of the cases are fictional, some are composites, and some are actual cases with the identities of the parties involved
disguised. The cases also point to the vast array of issues that the forensic examiner may confront. Like the chil- dren and adolescents who enter the family courts and juvenile justice system, the reader is embarking on a voy- age with many interesting turns.
This volume is intended for a wide audience includ- ing, but not limited to, practicing clinicians, forensic examiners, attorneys, and judges who may wish to use it as a reference book and trainees in child and adolescent psychiatry or psychology who may use it as a basic text.
In addition, clinicians will find it useful in preparing for board certification in forensic psychiatry.
ACKNOWLEDGMENTS
Dr. Schetky wishes to thank Rod Hook for his ongoing technical support with her computer crises. Without his ready availability and patience, she might still be writ- ing and editing this text. Special appreciation is also extended to our authors for putting up with seemingly endless editing and for adhering to deadlines in spite of other pressing issues in their lives (such as being held hos- tage in Turkey, as recently happened to one of our authors). Finally, many thanks to Pam Harley of Ameri- can Psychiatric Publishing for her diligent help with the final editing of this text.
1
PART I
Basics
P
art I introduces the reader to the principles of law and provides a basic framework for approaching forensic eval- uations. In Chapter 1, Dr. Schetky traces the burgeoning development of the specialty of child and adolescent forensic psychiatry and changing views of children and their rights. Chapter 2 introduces the reader to the legal system and its unique terminology. In user-friendly lan- guage, attorneys Guyer and Levy describe the history of the American legal system, the hierarchy of the American court system, standards of proof in civil and criminal cases, and the differences between civil and criminal cases.Dr. Schetky sets the stage for forensic work by reviewing the ethical principles that guide the practice of forensic psychiatry in Chapter 3. Common ethical issues are covered along with the methods used to handle ethical complaints. As with most of the chapters that follow, pit- falls are discussed and guidelines offered. In the following chapter, Dr. Schetky delineates the differences between the ordinary child psychiatric evaluation and the forensic evaluation. The reader will become acquainted with the perils of wearing two hats, a theme that is reiterated throughout this text.
Dr. Benedek walks the reader through the often con- fusing world of depositions and courtroom testimony in Chapter 5. She provides a step-by-step discussion of what to anticipate and advises on how to maintain one’s professional integrity and not be intimidated under cross- examination. In Chapter 6, Drs. Clark and Clark provide a comprehensive overview of psychological testing including specialized tests used in forensic evaluations.
They discuss the validity of some of the newer forensic tests that clinicians may consider requesting at the onset of an evaluation, if the forensic psychologist feels they are appropriate.
The potential for vicarious trauma is always present when participating in child and adolescent forensic eval- uations. The traumatized child can tug at our heartstrings or infuriate a normally objective clinician. Forensic eval- uators must confront man’s inhumanity to man on a reg- ular basis. As noted by Dr. Hegarty in Chapter 7, if one does not deal with the feelings invoked by vicarious trauma, fatigue, nightmares, compassion fatigue, and burnout may result from participating in forensic evalua- tions.
3
History of Child and Adolescent Forensic Psychiatry
Diane H. Schetky, M.D.
F
orensic psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal rather than therapeutic issues and ends. These legal con- texts may include civil, criminal, or legislative matters. In addition, there is a growing body of research within the field. In the latter part of the twentieth century, child and adolescent forensic psychiatry emerged as a sub-sub- specialty, and interest in this area continues to grow along with demands for experts in this field. Although the roots of child and adolescent forensic psychiatry go back a cen- tury to the founding of the first juvenile court, it is only within the past few decades that residency programs have offered any didactic training in this area and only recently has some exposure to the area become a training requirement in psychiatry and child psychiatry.THE EVOLUTION OF CHILDHOOD
Childhood, as we know it today, is a relatively new con- cept. Demause (1974) reminds us that “the history of childhood is a nightmare from which we have only recently begun to awaken.” The further back in history one goes, the lower the level of child care was and the more likely children were to have been killed, aban- doned, beaten, terrorized, and sexually abused. He notes that terrorizing children was common, the practice of farming children out to wet nurses interfered with paren- tal empathy, and parents in general lacked empathy and emotional maturity. In addition, high infant mortality rates undoubtedly affected the extent to which parents
became emotionally invested in their children. We know that the sexual abuse of children has been widespread throughout history and that severe beatings of children were common until the nineteenth century, when the practice of punishing them by putting them in dark clos- ets gained popularity over beatings. Infanticide and expo- sure of infants, particularly females, were practiced until the fourth century, as was child sacrifice in some cul- tures.
The notion of childhood as a separate period in life began to emerge in the sixteenth century in response to changes in the adult world. Two notable influences were the teachings of the Jesuits and the invention of the printing press. The Jesuits stressed schooling of children, shame, childhood innocence, and the need to protect children from adult secrets. There followed campaigns against the sexual abuse of children, although child pros- titution continued to flourish into the Victorian era. The invention of the printing press contributed to a separa- tion between adults and children in that, as a result of it, adults gained access to information that children did not have. Ironically, the mass media, in particular television and the Internet, now threatens to erode these bound- aries.
THE EARLY TREATMENT OF CHILDREN UNDER THE LAW
In order to appreciate the many changes that have occurred in how the legal system and society respond to
children in need or in trouble, we need to recall that prior to the twentieth century children were for the most part treated as the property of their parents. Early custody disputes reflect that children were valued not so much for themselves but rather for the labor they might pro- vide, and they were fully exploited in the labor market prior to laws prohibiting child labor. Children charged with misconduct were subject to the same criminal pro- ceedings and sanctions as adults and even jailed with them. Exceptions existed for children under age 7, who along with the insane were considered to lack the capac- ity for reason, which is necessary to form criminal intent;
hence, they were not brought to trial. Under English common law, children under age 7 continued to be exempted from criminal proceedings and those 14 years and older were subject to the same penalties as adults.
However, there are records of children as young as 8 years old being executed in the early nineteenth cen- tury in England and the United States for crimes as minor as theft (Platt 1977).
There were no laws protecting children from abuse or neglect, and the first prosecuted case of child abuse had to be taken to the Society for Prevention of Cruelty to Animals, because the Society for Prevention of Cru- elty to Children, founded in 1875 in New York, had not yet been established. Foster care as we know it now did not exist at that time, although under Charles Loring Brace trainloads of children from the slums of New York City were placed with farm families in the Midwest.
Brace (1872) believed that given a change in circum- stance, “many of their vices [would] drop from them like the old and verminous clothing they left behind.” Some of these children thrived, whereas others were terribly exploited. The distinction between dependent and delin- quent children was often blurred, and they were treated in similar fashion in terms of placements. Institutional care developed as an alternative to almshouses, and chil- dren could be placed there by their parents or the courts although racist practices often excluded minorities.
DEVELOPMENT OF THE JUVENILE JUSTICE SYSTEM
The nascent field of criminology was dominated by Euro- pean writers and English law, and various theories abounded as to the causes of delinquency, including moral or physical inferiority, hereditary factors, urban liv- ing, and economic instability (Platt 1977). Under the influence of social reformers in the late nineteenth cen-
tury, a rehabilitative ideal emerged that was to change the way in which juvenile delinquents were handled. A med- ical model was adopted that stressed multidisciplinary evaluations, the prevention of delinquency, and treat- ment rather than dwelling on pathology. This reform movement culminated in the establishment of the first juvenile court in 1899 in Chicago; other states soon fol- lowed suit.
The juvenile court assumed an attitude of benevo- lence and attempted to decriminalize the children who passed through its doors, but in doing so, it deprived them of due process rights. With the help of medical and mental health professionals, it sought to understand the total child and respond to him “as a wise, merciful father handles his own child whose errors are not discovered by the authorities” (Mack 1909). The American Orthopsy- chiatric Association formed as an interdisciplinary forum for understanding the causes and treatment of delin- quency. For those youths needing placement, training centers were established that aimed to remove children from corruptive influences. Many of these centers were sectarian and emphasized religion, moral training, disci- pline, labor, and industrial training.
Disillusionment was soon to follow as the early juve- nile court was not able to live up to its promises. Dispo- sitional and treatment components of clinics were severely lagging, and there was inadequate funding to sus- tain programs. In addition, the benign atmosphere of the court failed to curb the behavior of more hardened delin- quents. In In re Gault Justice Fortas charged that “in most juvenile courts the child receives the worst of both worlds: that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Stone (1976) lamented that
“the court’s only function in many cases is to funnel chil- dren from unsuitable homes to unsuitable placements.”
In the 1960s, President Johnson’s Commission on Law Enforcement attempted to improve the juvenile justice system. The Commission’s report noted the failures of the juvenile courts and stressed the need for prevention through community-based diversion programs aimed at predelinquents. The effort failed to have any significant effect on hard-core delinquents. We continue to struggle with how best to intervene with this difficult segment of the population, and the law has recently moved toward treating juveniles who commit serious crimes more like adults and removing the former protections of the juve- nile court. The increase in the number of adolescents committing violent crime has created a demand for more adolescent forensic psychiatrists to consult with schools and courts.
CHILD CUSTODY
Under Roman law “the father had absolute control over his children and could sell or condemn them to death with impunity” (Derdeyn 1976). English law stressed the father’s absolute right to the child in as much as the child was viewed as property. Similar concepts prevailed in the United States, and it was assumed that in return for sup- port a father was entitled to the child’s services. Only gradually did the notion evolve that the custody of chil- dren involved not only support but also responsibility for the care of children. In the late nineteenth century, the father custody presumption gave way to the tender years presumption, which deemed maternal care to be neces- sary for the young child. The pendulum swung to favor- ing mother custody and remained there (except in cases of moral unfitness) until the introduction of shared cus- tody arrangements in the 1980s. The concept of the child’s best interests did not emerge until 1881 in the case of Chapsky v. Wood. In this decision, the judge awarded custody of a 5-year-old girl to her grandmother over her father citing the paramount concern of the wel- fare of the child. In 1925, Judge Benjamin Cardozo spec- ified that the court’s role is to serve as parens patriae and do “what is in the best interests of the child” (Finlay v.
Finlay 1925). (The term parens patriae originally referred to the king’s guardianship over people legally unable to act for themselves.) Impetus for the involve- ment of mental health professionals in custody decisions was provided by Goldstein, Freud, and Solnit (1973) in Beyond the Best Interests of the Child, which applied psy- choanalytic principles to the resolution of custody dis- putes. As no-fault divorces became more common, courts began paying more attention to the needs of the involved children. Custody issues have since taken on new dimensions with the advent of surrogacy, adoptions by gay and lesbian parents, and international and trans- racial adoptions.
ABUSED AND NEGLECTED CHILDREN
The sexual abuse of children has been documented since the sixth century B.C., but society’s response to the prob- lem has been slow. Mandatory reporting laws for child abuse did not go into effect until 1974. As a result of this federal legislation and increased media attention to both physical and sexual abuse, reporting of allegations contin- ues to soar and reports of suspected sexual abuse now outnumber reports of physical abuse. Clinicians are
increasingly being asked to help differentiate valid claims of abuse from undocumented or false ones. The demands of the court in this regard sometimes exceed our ability to differentiate true from false allegations of abuse, and new research on children’s memories and suggestibility sounds a note of caution in this regard.
Foster care emerged in the early twentieth century as an alternative to institutional care for children, but it has traditionally favored Caucasian children. Children were often lost in the foster care system, their physical and mental health needs neglected, and little effort was made to find permanent placement. Placements often broke down, and multiple placements with ensuing attachment disorders were common. Much has been done to change this situation in recent years with more emphasis being put on avoiding placement through providing in-home services. Time limits are now put on duration of foster care, and permanent placement has become a top priority with either return to the home or adoption. Another change has been the increased use of kinship placements and focus on the child’s needs rather than the parents’.
Agencies have become much more aggressive in locating adoptive homes for hard-to-place children and have relaxed their former rigidity regarding only placing chil- dren with “traditional” families. Forensic practitioners are often asked to confer on questions of placement, parental reunification, and termination of parental rights.
CIVIL LITIGATION
In the past, the courts did not allow recovery for damages that were purely psychological in nature. Changes in the law have opened the way for claims invoking posttrau- matic stress disorder (PTSD), and child and adolescent forensic psychiatrists are becoming involved as experts in these cases. Many of them are second-generation sexual abuse cases with adults abused as children now suing their perpetrators. Some states have removed statutes of limitation for sexual abuse cases, which leaves a long win- dow of time in which a victim can bring about a civil suit.
Research on PTSD and greater public awareness of this condition have led to more litigation by plaintiffs who have experienced or witnessed trauma. Sexual harass- ment has become a new area of litigation and schools may now be held liable for failure to address the problem.
Experts may also be involved in malpractice cases against physicians with litigation typically involving boundary violations, suicide of a patient, or adverse out- comes to medication. The 1990s have seen a spate of suits against therapists for failing to diagnose sexual abuse
or falsely diagnosing it and inducing their patients’ recol- lections of abuse.
ETHICS
As the specialty of forensic psychiatry grows, so does the need for ethical guidelines.
Many psychiatrists have flocked to the field as the last refuge from managed care, and if they have not done forensic fellowships, they may lack grounding in basic principles of forensic ethics. Child and adolescent foren- sic psychiatry, even more so than adult forensic psychia- try, falls through the cracks, as neither the American Academy of Child and Adolescent Psychiatry (AACAP) nor the American Academy of Psychiatry and Law (AAPL) has adequate guidelines to address its unique issues.
TRAINING
Currently there are 34 one-year fellowships in forensic psychiatry in the United States that are certified by the Accreditation Council on Graduate Medical Education (ACGME) and 5 Canadian fellowship programs. Some offer more training than others in child and adolescent forensic issues; information about these programs may be obtained from the AAPL Web site (www.aapl.org). In 1994, the American Board of Psychiatry and Neurology began offering certification in the subspecialty of forensic psychiatry, thereby replacing the board certification pre- viously offered by the American Board of Forensic Psy- chiatry. A 1-year forensic fellowship from a program cer- tified by the ACGME is now a requirement to be eligible to take the board exam for added qualifications in foren- sic psychiatry.
Many other opportunities abound for getting expo- sure to forensic psychiatry short of doing a fellowship.
AAPL, which was founded in 1969, is a growing and thriving organization that holds annual meetings each fall.
Increasingly, the programs contain sessions and courses dealing with child and adolescent forensic issues, reflect- ing the growing number of child and adolescent psychia- trists who have joined AAPL. It also publishes an excel- lent quarterly journal and a newsletter. AACAP has published practice parameters on forensic issues and also offers programs dealing with forensic psychiatry at its annual meetings. Working in youth correctional facilities offers a good immersion course in issues of juvenile crime and justice and does not require a forensic fellowship.
Mentorship with a more experienced forensic clinician is another way of getting started with some forensic cases in a private practice.
REFERENCES
Brace C: The Dangerous Classes of New York and Twenty Years’
Work Among Them. New York, Wynkoop & Hallenbect, 1872
Demause L: The History of Childhood. New York, The Psy- chohistory Press, 1974, p 1
Derdeyn A: Child custody in historical perspective. Am J Psy- chiatry 133:1369–1375, 1976
Finlay v Finlay, 148 NE 624 (NY 1925)
Goldstein J, Freud A, Solnit A: Beyond the Best Interests of the Child. New York, Free Press, 1973
In re Gault, 387 US 1 (1967)
Mack J: The Juvenile Court, 23 Harvard Law Rev 104–122 (1909)
Platt A: The Child Savers: The Invention of Delinquency. Chi- cago, University of Chicago Press, 1977
Stone A: Mental Health and the Law. New York, Jason Aron- son, 1976, p 156
7
Introduction to the Legal System
Melvin J. Guyer, J.D., Ph.D.
Robert J. Levy, J.D.
INTRODUCTION TO THE LEGAL SYSTEM
We address this chapter to those with no formal training in law or the legal system. But most of you read the news- paper, watch The Practice and NYPD Blue, and occasion- ally indulge in a novel about lawyers. Moreover, you are probably acquainted with at least some legal proceedings:
impeachment, to be sure, and rules of evidence—Daubert and Fry admissibility rules, perhaps. Some of you may have had experience with criminal procedure: “Mirandiz- ing” suspects or the “not guilty by reason of insanity”
defense. But such contacts with the legal system must have been ambiguous at best.
We will assume, with your permission, that you know little about the topic. We set out the legal system’s basic framework in a sort of basic civics course style to help you as mental health clinicians in your many and var- ious interactions with the courts, legal agencies, legal actors of several kinds, and, especially, with your patients who are also lawyers’ clients. The concepts and defini- tions to which we introduce you may well make your pro- fessional contacts more comfortable and your contribu- tions more useful.
We address the following topics: structure of the court system; types of legal proceedings; pretrial pro- ceedings; and a potpourri of important (and sometimes very arcane) legal niceties and doctrines, such as appeals and appellate courts’ roles in the legal system (and how such cases are “cited,” that is, found in judicial reports), judicial treatment of clinicians (e.g., are you always con-
sidered an expert?), judicial decision making, and evi- dence doctrine dynamics.
STRUCTURE OF COURTS History
The origins of the American legal system trace to ancient English principles and the emergence of modern nation- states from their medieval antecedents close to a millen- nium ago. (The “King’s,” or “national,” courts and national legal doctrines, the “common law,” over time replaced the local magistrates and idiosyncratic doctrines imposed by previously all-powerful nobles on serfs and renters in their fiefdoms.) These historical roots eventu- ally produced the doctrines controlling the contracts you now sign with your employers and employees and the law determining whether you can sue or be sued by the angry therapy patient who rear-ended your car in the parking lot. More importantly, from these roots grew the founda- tions of the system of courts in which you will testify, the formal substantive rules for adjudication of the civil dis- putes for which you will provide clinical expertise, and the “adversary” procedures that favor jury decision in civil and criminal cases and permit a lawyer for litigants opposed to your patient’s or client’s claim or defense to cross-examine. This adversarial system is governed both in procedure and substantive doctrine by adherence under most circumstances to established principles determined by previous, sometimes even ancient, deci- sions (called precedents). The policy of such adherence is described by an ancient term, stare decisis.
The same ancient tradition tracing to the emergence of nation-states contains the roots of modern American criminal procedure, shaping and sometimes controlling several of the frequently controversial constitutional rights afforded criminals, such as the right to be pre- sumed innocent until proved guilty, trial by a jury of peers, the right to confront and cross-examine witnesses, and protection from self-incrimination.
Hierarchies
State court systems are arranged as hierarchies: the
“lower” courts functioning as trial courts and “higher”
courts providing “appellate” review, a supervisory func- tion for trial court decisions. Such review typically includes the trial court’s procedure, as well as the merits of decisions. With some exceptions, trial courts exercise general jurisdiction—the authority to hear and decide all types of cases, civil and criminal, that the state legisla- ture, the ultimate source of all judicial jurisdiction, has authorized. The one exception to this rule of state legis- lative hegemony derives from the United States Consti- tution’s decree that the “Great Writ,” the writ of habeas corpus, which frees any person from illegal imprison- ment, “shall not be suspended except in cases of invasion or rebellion.” The constitutional provision governs the states because of the Constitution’s Supremacy Clause, designed to prevent the states from evading constitu- tional principles. Every state legislature also provides a system of specialized courts, or courts of limited jurisdic- tion, for cases of less importance (e.g., misdemeanors rather than felonies, small monetary claims) and cases in which special training for judges is thought to be neces- sary (e.g., juvenile delinquency and neglect, housing,
“commitment” of those who cannot take care of them- selves, decedents’ estates and wills).
Federal Courts
The U.S. Congress has authorized a parallel system of federal trial and appellate courts to decide cases arising under the Constitution and specifically enacted federal statutes. The Congress has also enacted rules for federal court jurisdiction of civil cases if the parties are residents of different states. Appeals from federal trial courts are heard by one of nine U.S. Courts of Appeal. And, of course, the nine justices of the U.S. Supreme Court may exercise their appellate jurisdiction and review any deci- sion by one of the Courts of Appeal. The often arcane rules governing federal jurisdiction lie far beyond the intended scope of this chapter. Because of the centrality of federal-state relations in the American judicial and political system, the United States Constitution specifi-
cally authorized U.S. Supreme Court appellate jurisdic- tion to review any final state judicial decision. This review most often occurs when a state supreme court holds that a state statute passes federal constitutional muster and when a citizen’s constitutionally protected rights may have been abridged by a state statute or some state official. U.S. Supreme Court decisions of appeals of such “state action” cases occur in criminal proceedings when defendants claim some denial of the individual pro- tections afforded by the Constitution’s Bill of Rights.
Specialized Courts
As we have indicated, some state courts are specialized and exercise jurisdiction constrained by subject matter or by the special character of particular cases. The example most of you will recognize is the juvenile court, which usually has authority over matters relating to minors:
delinquency (any act which if committed by an adult could be prosecuted as a criminal offense), and depen- dency and neglect—any child who is at risk due to care- taker inability, dangerous inattention, abuse, or abandon- ment. These sources of judicial jurisdiction, if proved, allow supposedly specially trained or assigned judges to exercise authority over the problematic behavior of minors and the care of such minors by their parents, even if the behavior of the minor and the care of the parent are not criminal. Suppose a child regularly refuses to obey the reasonable demands and instructions of his or her parent or a parent refuses to provide his or her child with essential food or medical care. The child could be adjudi- cated neglected or dependent, the judge could order the child removed from the family and placed in foster care, the family could be ordered to provide the needed ser- vices, the child could be ordered to obey his or her par- ents, or the parents’ parental rights could be terminated.
In short, under this legal regime, at least during the child’s minority, judges are given enormous power to determine the circumstances of the child’s family rela- tionships and upbringing.
Surrogate, probate, and orphans’ courts are different names for another type of specialized tribunal, exercising authority over such matters as the financial affairs of per- sons who are legally or otherwise vulnerable, the young and the aged, the infirm, and the mentally ill. These courts conduct “civil commitment” and “guardianship”
proceedings, grant adoptions, supervise the administra- tion of estates and trusts and their trustees, and decide contested wills. From ancient times, such courts, acting as parens patriae (the community’s parent, originally the king), exercise authority and responsibility to protect those who cannot protect themselves. Specialized courts
of the kinds described often call on clinical professionals for advice and testimony. A probate court might ask for mental health professional testimony as to the ability of a patient with Alzheimer’s disease to handle his own finances; parents whose parental rights the state is seek- ing to terminate may ask a child clinician for an opinion that they are capable in the future of taking adequate care of their children despite one parent’s drug addiction or mental illness. The litigation contexts in which requests for clinical advice and testimony may be requested are multifarious, and the roles of the profes- sional will vary with the client and the context. The cli- nician must understand how these variations affect his or her role and responsibility. The bulk of this book focuses on these contextual and role variations and the profes- sional and ethical double binds these variations can cause the unwary.
TYPES OF LEGAL PROCEEDINGS
Courts of general jurisdiction hear both civil and criminal cases. For civil cases, a forum is provided to resolve the enormous variety of disputes that can arise between two litigants, plaintiff or defendant, third-party intervenors, cross-plaintiffs, and cross-defendants. Each of these legal actors is called a party—the generic label for any entity asserting a legal claim. A party may be an individual, a corporation, or indeed even a large class of individuals who share a common legal grievance or defense. An example of such a class is all women with silicon breast implants who claim injury and illness caused by the implants; another such class is all patients who develop tardive dyskinesia after years of compelled psychiatric medication.
Dynamics of Legal Proof
The essence of most cases can be explored by asking and answering three fairly simple questions:
1. What must be proven? Each type of civil lawsuit requires, if the plaintiff is to prevail, that specific assertions, known as the elements of the cause of action, be proved (similarly with a defendant’s defenses, such as self-defense as a response to a law- suit for assault and battery).
2. Who must prove the elements? In a civil suit, the plaintiff, that is, the person lodging the legal com- plaint, must prove the elements of the cause of action. This duty is expressed, in legal jargon, as the
burden of proof. In criminal cases, because of the
“presumption of innocence” (remember the old saw:
“It’s better that ten guilty defendants go free than that one innocent defendant be convicted”), the state has the burden of proving the elements of the crime charged against the defendant. Despite these cautions designed to protect defendants in criminal cases, bur- dens of proof can and do shift for strategic and effi- ciency reasons. For example, if a criminal defendant claims the defense of not guilty by reason of insanity, in at least some states the defendant must carry the burden of introducing sufficient evidence of insanity to make a prima facie case (one that has offered evi- dence sufficient to allow a jury verdict favorable to the plaintiff)—only then does the burden of proof shift and require the prosecution to prove that the defendant is not insane.
3. How much proof must be offered? In most civil cases, the plaintiff, who has the burden of proof, must prove his case by a “preponderance of the evidence.”
But in some cases, again for practical or efficiency or fairness reasons, the more stringent “clear and con- vincing evidence” is required. This burden is imposed in some cases where the state is plaintiff or where the case involves some measure of punishment or stigma for the defendant. Paternity suits, terminations of parental rights, and commitments to mental hospitals have all been identified (occasionally by constitu- tional decree) as situations in which the more onerous burden of proof is required. In criminal cases, for rea- sons we have already mentioned, the burden of proof required is the even more stringent beyond a reason- able doubt.
Civil Cases
Civil disputes are usually categorized generically: con- tract claims, property and financial disputes, torts, including such subtypes as negligence, medical malprac- tice, libel, and slander, and various nonphysical invasions of the plaintiff ’s person or interests claimed to cause mental or physical injury and/or financial loss. An exam- ple of the last category is a claim by a child’s parent or other relative for “pain and suffering” caused when the defendant killed or seriously injured the child.
Civil disputes typically involve a plaintiff asserting a financial loss because of the defendant’s behavior and a request for a legal remedy for the loss—either a financial recovery or an injunction that the defendant must “cease and desist” from continuing the behavior causing the plaintiff injury. A contract claim, for example, must assert the legal elements of the cause of action; these
include that one of the parties made an offer to the other, that the offeree made a valid acceptance of the offer, that the resulting agreement contained adequate consider- ation (the financial inducement for acceptance of the agreement), and that the defendant had breached the agreement to the plaintiff ’s financial disadvantage. Con- tract claims are typically set in the world of business deal- ings; but many contract lawsuits involve personal rela- tionships in which finances are secondary considerations.
For centuries marriages were considered contracts and their validity (in annulment proceedings) was deter- mined as business contracts are still assessed; divorce was considered the remedy for breach of the marriage con- tract, with damages assessed against the breaching party.
This is only one small way in which ancient concepts and the elements of causes of action conceived hundreds of years ago, under very different social and legal conditions, continue to affect social relationships and the develop- ment of legal remedies.
Tort actions are probably the most common form of civil action and the one most familiar to nonlawyers.
A plaintiff asserts that the defendant owed her a “duty of care” and acted in a negligent manner, causing the plain- tiff a foreseeable harm, loss, or injury. Personal injuries from car accidents, medical malpractice, and product lia- bility claims are all examples. That the defendant owes the plaintiff a duty of care is sometimes clear and settled from statutes or judicial precedents: the physician’s responsibility to her patient, for example, or the land- lord’s to his tenant. In some instances, however, espe- cially when a novel cause of action is being asserted, the duty issue may be doubtful. The action for damages filed by the states against the tobacco companies affords a timely example. Another is the recent spate of suits by parents of adult patients against therapists for assisting patients to recover “memories” of childhood abuse. The duty of care issue is whether a therapist whose patient’s relatives have been injured by the patient’s false allega- tions can be liable to the relatives for negligent therapy.
Courts have reached different conclusions about the issue.
Procedure and Evidence in Civil Cases
Civil suits follow a fairly standard course, governed by formal rules of “civil procedure” and codified “rules of evidence.” These rules provide in very specific detail for every aspect of a lawsuit; where the suit can be filed, time deadlines for filing (called statutes of limitations), and methods of serving notice of the suit to the defen- dant are all specified in rules. Deviations may result in dismissal of the suit before the merits are reached.
Pretrial and Discovery in Civil Cases
“Rules of civil procedure,” unique to each state but every- where closely following the rules adopted in federal courts, allow and encourage full pretrial (i.e., preliminary to court hearings) exploration by each party of the oppos- ing party’s legal claims or defenses. The rules typically require full disclosure by each party of facts that conceiv- ably bear on the cause of action or defenses to it. The par- ties are permitted to seek and obtain information through a variety of specified methods. The process is called dis- covery. It can include a variety of techniques.
Depositions. Depositions involve the taking of sworn testimony of the opposing party and any other person thought by the deposing party to have some knowledge of facts pertaining to the issues in the lawsuit. Deposi- tions of clinicians are often taken if they have examined a child during the period preceding filing of a divorce or custody case.
Interrogatories. This technique involves a written deposition, usually questions requiring a written answer under oath, submitted to a party by the opposing litigant.
The information sought can be far-reaching and exten- sive. In a suit claiming personal injury, for example, the plaintiff may be asked to set out the name and location of every health care provider ever visited, the reason for the visit and any diagnosis or treatment received.
Subpoenas. A subpoena is a court order (prepared and served by a lawyer) requiring the appearance of a witness for deposition or trial. A demand for the appearance of a witness or party with his or her records is known as a sub- poena duces tecum (the Latin persists because lawyers, unlike clinicians, dislike giving up any of their ancient, mystifying vernacular). A request for record production may be very broad and general, such as when a company is asked to produce all phone logs, e-mails, and interoffice memos having any bearing on a case. Such requests for documents are open-ended and deemed continuing at least during the discovery phase of the case. The party seeking records or testimony does not need to know what the records contain before making a blanket request for production.
Examination of evidence. The rules of discovery per- mit examination and testing, where appropriate, of evi- dence produced. Documents may be analyzed and tested for authenticity, origin, and age. Similarly, plaintiffs who seek damages for physical and/or emotional loss—as well as any person, such as a custody contestant, whose men- tal state is “in issue”—may be required to submit to an independent medical and/or psychological examination
(IME), conducted by an examiner of the demanding liti- gant’s choosing. In damage actions, the defendant is per- mitted to test the claims of loss or injury made by the plaintiff before the case proceeds to trial. The expert conducting an IME may be deposed by the opposing party concerning background, training, experience, and values. Typical deposition questions might include: “Doc- tor, have you ever done an IME of a defendant, or do you restrict your practice to testifying against injured plain- tiffs?” “Isn’t it true that the child psychiatry training pro- gram at [your university] has been suspended by the AHA?” “Isn’t it true, Doctor, that you wrote an article for the Psychological Bulletin arguing that children [here fill in anything awful]?” Of course, the expert’s opinions can also be explored and questioned. If a trial occurs, the IME examiner may expect to be called as an expert wit- ness and to be examined and cross-examined by the liti- gants, and reference can be made to the expert’s prior deposition for purposes of impeachment (i.e., to cast doubt on the reliability of the testimony).
Evidence disclosure. The parties may be required, before trial, to disclose the witnesses whom they intend to call, the nature of the witnesses’ testimony, as well as any documents or physical evidence that might be intro- duced in evidence at trial. Expert witnesses’ claimed expertise, education and experience, and the nature of their opinions must be disclosed so that the opposing party can prepare a defense, can perform a voir dire of the expert (an examination to prove, if the opponent wants to and can, that the expert is not in fact qualified as an expert), and can prepare to rebut the expert’s tes- timony by calling an opposing expert as a witness.
Free discovery was introduced into the rules of pro- cedure as a way of guaranteeing that the parties to a civil suit would approach trial knowing what evidence their opponent would introduce and be prepared to rebut it.
Most observers believe that liberal pretrial discovery has produced earlier and fairer settlements and trials based on the merits rather than “surprise” and “ambush.” But it has also made it possible for wealthier litigants to intimi- date their less-well-off opponents through extensive dis- covery, raising their opponents’ legal costs to sometimes unbearable amounts.
Civil Trials
If a civil case goes to trial, it may be heard by a jury, or if both parties agree, by the judge, acting as the fact finder.
Some cases, those that traditionally were considered equity (or injunction) causes of action, are heard and decided only by a judge. The first element of a trial by jury is for the litigants, with the judge’s supervision, to
impanel a jury after the voir dire of a jury panel. This exercise, consisting of questioning of jurors either indi- vidually or in groups by either the lawyers or the judge (depending on the jurisdiction), is designed to ensure that no juror biased about a particular litigant or a partic- ular cause of action will be permitted to sit in judgment.
Thus a juror who has been robbed at gunpoint would be excused from a prosecution for armed robbery, as would a relative of one of the case’s parties.
At trial, the plaintiff puts his or her case on initially, setting out the facts that support the claim. Evidence is presented in the form of witness testimony and exhibits, which may be documents, photographs, charts, and so forth. The introduction of evidence is governed by formal rules of evidence. These are complex and codified rules applied by the judge to proffered testimony—but only at the request of the party against whose interest the testi- mony is proffered. These rules and the judge’s applica- tion of them determine what the jury will be permitted to know about the case. When an objection is made to a proffer of evidence, the judge must rule on admissibility.
These trial objections, always sharpening interest in dra- matized trials or “Court TV,” are obviously attempts by one party to influence the fact finder’s view of the evi- dence and the case by precluding attention to some bit of evidence. “Speculation,” “hearsay,” “irrelevant,” “repeti- tious,” and “no foundation” are among the many objec- tions you are likely to find familiar.
Each of the party’s witnesses can be cross-examined by the opposing party. When the plaintiff ’s presentation of her case is complete (she “rests”), the defendant will usually make a motion to dismiss on grounds that the plaintiff has not proved a prima facie case. If this motion is denied, the defendant will then proceed to introduce her defenses and rebuttals to the plaintiff ’s witnesses.
The trial now proceeds for the defendant as it did for the plaintiff. Then, before closing argument and the judge’s
“charge” to the jury, the plaintiff has a chance to intro- duce witnesses in rebuttal of the defendant’s case. Rebut- tal witnesses are often used against expert witnesses;
they may challenge the opposing expert’s knowledge, experience, or training or simply testify that the expert’s testimony is based on some kind of factual or theoretical error.
The rules of evidence provide for the use of expert witnesses if it can be shown that by reason of scientific training, educational experience, or specialized knowl- edge, the expert has an understanding that ordinary persons do not possess and if the expert’s testimony can be shown to aid the jury’s deliberation in any fashion. As this phrasing indicates, the rules of evidence are generally oriented toward admissibility of expert testimony, sub-
ject to cross-examination and rebuttal “for what it’s worth.” In many states, though, expert testimony is still frowned on when the testimony “usurps the role of the jury”—for example, is directed to the ultimate issue, that is, answers the question that is the jury’s responsibility to decide, as in “I believe the defendant was not guilty by reason of insanity,” or “I conclude that the child was sex- ually abused.” Once qualified by the court as an “expert,”
the expert witness may offer learned opinions and expla- nations derived from his special knowledge. Lay wit- nesses are usually restricted to testimony about what they have directly experienced.
After completion of the case presentations, the judge instructs (“charges”) the jury on the law to be applied to the facts the jury finds proved from the testimony pre- sented. The jury is told that it can make credibility judg- ments about the testimony of the various witnesses but that it is bound by the facts as presented and may not seek additional or external data to resolve its uncertain- ties. The jury is also instructed on the burden of proof, a topic we discussed earlier.
The judge’s charge informs jurors of the legal ele- ments of the cause of action and reminds them to ignore any testimony they heard to which proper objection was made. Although such testimony is typically struck from the record, it remains both in the transcript and, many contend, in the memories of jurors. Indeed, some social psychologists’ laboratory research with mock jurors has shown that objections only call evidence more dramati- cally to jurors’ attention and make the objectionable evi- dence more salient than at least some of the testimony to which no objection was made! Jury instructions these days are generally standard text material, prepared by professional groups and called JIGs and CrimJIGs (Jury Instruction Guides and Criminal Jury Instruction Guides). Interestingly, jurors quizzed on judges’ instruc- tions often display little understanding of the law they have applied or even recollection of what they have been told. Jurors do know that they have to decide who wins, and if it is the plaintiff, how much money must be awarded to provide compensation for the losses they have found the plaintiff incurred. In recent years, efforts to compel jurors to follow the law more—rather than only their rough sense of justice—in particular cases have led many jurisdictions to adopt the practice of requiring
“special verdicts.” These are verdict forms delivered when the jury begins its deliberations that require the jurors collectively to answer specific questions. The notion is that jurors’ discretion will be constrained by compelling greater adherence to the legal elements of the case; in the event that special verdict forms show that the jury wanted the plaintiff or the defendant to win
despite contrary factual findings (an inconsistent ver- dict), the judge is in a better position to correct the jury’s error.
Juries can award plaintiffs their actual losses, of course, and, in some instances, punitive damages as well.
Excessive punitive damage awards in some recent highly publicized civil actions have led to a new legislative and even constitutional movement, approved by the U.S.
Supreme Court, to constrain the imposition of punitive damages.
Criminal Cases
Criminal cases invoke the community’s direct and vital interest in protecting the safety of its citizens and their values and community order (and, sometimes, what leg- islators believe should be their morals). Forbidden behav- iors are legislatively codified in criminal statutes, provid- ing citizens with advance notice of what acts by individuals are subject to societal sanction. Criminal sanctions can be imposed on behavior of minor signifi- cance, such as traffic infractions, or on behavior of sub- stantial consequence and taboo, such as intentional homi- cide. As a consequence of this enormous variety in rule- breaking behavior, sanctions imposed on persons con- victed of a crime can vary enormously, from small fines and community service to capital punishment, with great discretion left to judges to address the individual circum- stances of individual defendants. In recent years, how- ever, at least for major crimes, there has been a move- ment to adopt sentencing guidelines, designed to lessen judicial discretion and to equalize punishment for similar crimes and for similarly situated defendants. Sentences, and the proper method of punishing those who commit criminal acts, have become highly emotional issues. Sen- tencing guidelines have lessened the importance of clini- cal analysis and prediction by probation officers and cli- nicians in individual cases; they have also led to enormous increases in public costs and populations of prisons.
Crime and the punishment for crimes will be among the major social and political issues in the next decades.
Procedure in Criminal Cases
Criminal justice is characterized by the constitutional and legislative imposition of a variety of formal proce- dures intended to protect a defendant from the vast pow- ers the state has at its disposal in prosecuting defendants.
Defendants’ procedural rights usually derive from ancient English law, some of it codified in England in the Magna Carta, centuries of parliamentary statutes and judicial decrees, and other concepts derived from colo- nial reactions to the abuses of power of the Inquisition
